The Pennsylvania Department of Transportation has appealed to the state Supreme Court a May 18 ruling that put the brakes on the state’s high-profile plan to use public-private partnerships to develop nine tolled bridges.
Commonwealth Court Judge Ellen Ceiler on May 18 ruled that the $2.2 billion Major Bridge P3 Initiative may be illegal and unconstitutional.
Cumberland County and seven municipalities sued in March to block the statewide program and specifically the plan to toll the I-83 bridge. A group of three Allegheny County municipalities filed a similar suit to halt the plan in November 2021.
“The [Public-Private Transportation Partnership] board essentially approved a massive multi-billion dollar infrastructure initiative on an admittedly meager record,” Ceisler wrote in her 62-page opinion. A temporary injunction is necessary “to redress immediate and irreparable injury in the form of the likely violation of Act 88,” she said, referring to the state’s P3-enabling statute.
The judge also ruled that authority given to the private team – which was announced in March – allowing it to enter into subcontracts without board approval, “combined with the less-than-transparent manner in which the initiative was approved, seriously undermines public confidence in the P3 process and in public procurement.”
PennDOT has appealed the opinion to the Supreme Court of Pennsylvania, said a spokesperson.
“We continue to welcome discussions with the General Assembly on alternative, sustainable revenue solutions to address both near-term and long-term funding needs so we can phase out Pennsylvania’s gas tax,” the spokesperson said.
The $2.2 billion Major Moves plan, which is strongly supported by Pennsylvania Gov. Tom Wolf, is the most recent initiative from PennDOT’s Public-Private Transportation Partnerships Office. The plan, which is closely watched by the P3 industry, calls for the state to fund the accelerated construction or repair of major interstate and expressway bridges through tolls.
PennDOT calls the initiative part of one of the most ambitious and comprehensive P3 programs in the country.
In March, PennDOT announced it had selected Bridging Pennsylvania Partners to administer the program, and would enter into a predevelopment agreement to finalize the “design and packaging” of the bridges. BPP includes Macquarie Infrastructure Developments LLC, Shikun & Binui Concessions USA Inc., and FCC Construccion SA, among other firms.
The May 18 ruling temporarily halts all PennDOT’s work, such as studies, hearings and meetings, until the full court makes a decision.
In their complaint, the eight municipalities argue that the P3 board failed to specify which bridges would be tolled when they approved the initiative and failed to consult with affected parties or consider whether the plan is in the best interest of the commonwealth, as required by Act 88.
The lawsuit also seeks a declaratory judgement that Act 88 itself is an unconstitutional delegation of legislative power. The act gives the board the power to determine whether a project is in the best interests of the state but “provides no standards to guide or restrain such determinations,” the municipalities argue.
The act also violates the state constitution because the board has the power to levy tolls, which are essentially a tax, they say.
In its response, PennDOT cited sovereign immunity and argued that the cities lack standing because any impacts from the tolled bridge are “remote and speculative.”
The state also says the claims are “nonjusticiable political questions” and that Act 88’s legislative review process affords an adequate remedy for the complaint.
The judge notes in her ruling that at an April 25 hearing on the issue, Michael Bonini, the director of PennDOT’s P3 office, testified that no particular candidate bridges were identified or discussed at the board meetings ahead of the November 12, 2020 meeting that approved the full initiative. Bonini testified that the PennDOT staff chose the bridges later, “with no involvement or input by the P3 Office or the board,” the judge said.
The judge noted that the contract under the program will have a combined value of around $2.4 billion.
Bonini also told the court that neither PennDOT nor the commonwealth would likely face any penalties if it is not allowed to proceed under the PDA.
The judge said the board did not appear to consult with any affected parties or consider whether the program is in the best interest of the commonwealth.
“The absence of such a conclusion is especially alarming given that BPP has autonomy under the PDA to select subcontractors without any oversight by the board,” she wrote. “Even though Act 88 authorizes predevelopment agreements … this does not allow the board to proceed at a level of generality so great that it cannot comply with its other duties under the Act.”
State Sen. Wayne Langerholc Jr., chairman of the Senate Transportation Committee and a critic of the plan, praised the ruling and said in a statement that the court’s ruling on the preliminary injunction “is restoring proper checks and balances on PennDOT’s power. I now urge Gov. Wolf to work with the legislature and find a compromise that is in the best interests of the Commonwealth.”